The Cost of Trust

I am among those who have resisted applauding or condemning President Bush's nomination of Harriet Miers as an Associate Justice of the Supreme Court. I do so simply because I know so little about the nominee that such breakneck speculation as to how she might rule on certain issues near and dear to my Federalist worldview would not only be inappropriate, but the same kind of unfairness for which I routinely castigate the Senate Democrats.

That is not to say that I don't have an initial reaction to the nomination, I do: I am underwhelmed. But whereas others have put forth forceful arguments as to why the choice of Ms. Miers is not only mistaken based upon her experience, but is also a tacit admission by the President that he has no stomach for a ideological fight, I am willing to be convinced otherwise.

There are those only too willing to take on that task. For example, Senator Cornyn, who shockingly hails from Texas himself, had this to say in today's Wall Street Journal

Others have criticized the president because Ms. Miers is a close confidante, implying that she would not be qualified but for their relationship. I could not disagree more. Of course, the president is going to be inclined to nominate someone he knows, likes and has confidence in. He is not going to nominate someone he does not know or someone he does not like. So long as she is otherwise qualified to the Supreme Court, Ms. Miers's [sic?] long and valuable service to the president should count in her favor, not against her.

Far be it from me to judge the president in matters personal, but simply because he and Ms. Miers have have got a history doesn't rack up the votes for an easy eight-in-the-corner-on-break. It's not that I don't trust the president's skill at picking personal counselors, but the Constitution belongs to us all, and its conservation is so dear to me that it requires more than a mere denial of cronyism from a Texan named "Cornyn." What else have you got Senator?

And, moreover, there is little question that she is up to the job. She has been a true trailblazer for women in the law. She was the first woman hired by her law firm--one of the most prominent in Texas. She was the first woman to serve as president of her law firm. She was the first woman to serve as president of the Dallas Bar Association. She was the first woman to serve as president of the Texas Bar Association. And her accomplishments do not end at the Lone Star border.

Decoded: "She is a really pushy chick." Good for her. Nevertheless, merely being "the first" at anything is scant proof of a person's qualifications in these days of diversity and affirmative action. Erstwhile quarterback Tim Couch was the first pick in the 1999 NFL draft. Heard much about him lately? Only a fool would believe that Ms. Miers is the most qualified person to assume the role of a justice of the Supreme Court. So what is it, Senator Cornyn, that makes Harriet Miers qualified at all other than her gender and her relationship with the president?

Furthermore, Harriet Miers's background as a legal practitioner is an asset, not a detriment. She has spent her career representing real people in courtrooms across America. This is precisely the type of experience that the Supreme Court needs. The court is full of justices who served as academics and court of appeals judges before they were nominated to the bench. What the court
is missing is someone who understands the consequences of its decisions on the American people.

Oh, Senator. You are joking. Being "in touch" with the American people does not qualify one to interpret the Constitution. In fact, it is that very mindset that underminds the law. Consequenses schmonsequences. This isn't traffic court where a judge can be swayed by a family's personal hardships and forego suspending a violator's drivers license. The role of a justice is to interpret the Consitution in such a manner as to guide the Republic and preserve its legislative decision making processes. The "consequenses" you speak of primarily arise when the Court strays from its interpretive role and starts legislating. See, e.g. Kelo, Raiche.

George Will zeros in on the subject with a venom usually reserved for Blue State representatives:

Under the rubric of "diversity" -- nowadays, the first refuge of intellectually disreputable impulses -- the president announced, surely without fathoming the implications, his belief in identity politics and its tawdry corollary, the idea of categorical representation. Identity politics holds that one's essential attributes are genetic, biological, ethnic or chromosomal -- that one's nature and understanding are decisively shaped by race, ethnicity or gender. Categorical representation holds that the interests of a group can be understood, empathized with and represented only by a member of that group. The crowning absurdity of the president's wallowing in such nonsense is the obvious assumption that the Supreme Court is, like a legislature, an institution of representation. This from a president who, introducing Miers, deplored judges who "legislate from the bench."

Minutes after the president announced the nomination of his friend from Texas, another Texas friend, Robert Jordan, former ambassador to Saudi Arabia, was on Fox News proclaiming what he and, no doubt, the White House that probably enlisted him for advocacy, considered glad and relevant tidings: Miers, Jordan said, has been a victim. She has been, he said contentedly, "discriminated against" because of her gender.
Her victimization was not so severe that it prevented her from becoming the first female president of a Texas law firm as large as hers, president of the State Bar of Texas and a senior White House official. Still, playing the victim card clarified, as much as anything has so far done, her credentials, which are her chromosomes and their supposedly painful consequences. For this we need a conservative president?

Pretty strong words, but essentially what's been bothering me about the whole process. When the Executive Branch starts out by confining its pool of nominees to a particular gender, race, ethnicity, or other ACCIDENTAL personal attribute, it has automatically compromised any trust the American people might have that the best interests of the country, rather than the political party, will be served. When eminently qualified individuals from that narrowed field are bypassed for a personal aquaintance, any "presumption" granted to the Executive's choice should rightly be dismissed.

Fortunately, Mr. President, I'm not at all yet convinced that Ms. Miers is not serving as your stalking horse for what may be a truly qualified candidate. At least I hope that is the case. In any event, I will give Ms. Miers the benefit of the doubt and allow her the opportunity to convince me that she can adequately handle the awesome responsibilities that flow from this lifetime position.

But here is what it costs: Don't ask me to "trust you" ever again, Mr. President.

And that, sir, is a mighty high toll.